Let the People Know the Facts: Can Government Information Removed from the Internet Be Reclaimed?

This article examines the legal bases of the public’s right to access government information, reviews the types of information that have recently been removed from the Internet, and analyzes the rationales given for the removals. The article suggests that the concerted use of the Freedom of Information Act by public interest groups and their constituents is a possible method of returning the information to the Internet.

“Let the people know the facts, and the country will be safe.” – AbrahamLincoln1

¶1 Popular information needed by “people who mean to be their own Governors”2 has been disappearing from government agency Web sites on the Internet at an alarming pace, generally in the name of national security. However, much of the information removed has had little effect on national security, but its loss has had a deleterious effect on vitally important public issues, such as local environmental contamination,3 women’s health and employment parity,4and civil rights issues.5

¶2 Even where the information removed from the Internet might bear some relation to national security, such as the case of environmental data, recent analysis has shown that the information is not of the level of detail that would actually aid terrorists in planning a successful attack, so removing it has a disproportionately high impact on citizens who need information.6 As Nancy Kranich has eloquently stated, “[I]f the public’s right to know is to be protected in today’s world, citizens must have optimal opportunities to acquire and exchange information. The stakes are high, for as the Supreme Court noted years ago, American democracy requires ‘the widest possible dissemination of information from diverse and antagonistic sources.'”7

¶3 This article discusses the bases of the public’s right to government information and the types of such information that have been removed from federal government Web sites on the Internet. It considers whether the rationale given for such removals is appropriate. Finally, it suggests using the federal Freedom of Information Act (FOIA) in an innovative manner to return the information to the Internet.8

¶4 The public’s right to access government information is most visibly protected by FOIA, enacted in 1966 to stop an increasingly noticeable tendency by federal agencies to shroud their actions in secrecy.9Earlier attempts to solve the problem by piecemeal reform of the Administrative Procedure Act had not been successful in overcoming federal agencies’ disinclination to release information.10

¶5 The Senate Committee on the Judiciary, charged with reporting on the bill introducing FOIA, reached the following conclusions: “A government by secrecy benefits no one. It injures the people it seeks to serve; it injures its own integrity and operation. It breeds mistrust, dampens the fervor of its citizens, and mocks their loyalty.”11

¶6 The debate about access to government information and the passage of FOIA took place at the same time that the Supreme Court was expanding its First Amendment jurisprudence. If FOIA had not been enacted, there might be a more explicit First Amendment protection of access to government information as a subset of the constitutionally protected right to receive information.12 Although the right to know about all of the workings of the government may be implied in the right to petition the government,13the Supreme Court has limited access government information as a matter of constitutional right to the press’s right to information about certain trial proceedings.14 Despite the Supreme Court’s continued affirmation of a constitutionally protected right to receive information, the Court has relied on FOIA, not the Constitution, to protect access to other government information.15

¶7 As a statutory framework for protection of access to government information, FOIA defined the agency records that were subject to disclosure, set up a rebuttable presumption of mandatory disclosure, and granted nine exemptions.16 Claiming an exemption is not mandatory; an agency has the discretion to release the information where no harm would result from the disclosure.17The Supreme Court has held that the nine “exemptions are specifically made exclusive . . . and must be narrowly construed.”18

¶8 The FOIAwas amended in 1974.19 These amendments broadened the definition of agency, revised time limits for responding to FOIA requests, required agencies to make indexes of information more readily available, clarified Congressional intent to allow in camera judicial review of allegedly classified documents in FOIA litigation, required annual reports to Congress, and granted courts discretion to award attorney’s fees and court costs for successful litigants (who would be advancing “a strong congressional policy”20).21The am endments were not passed without a political battle. President Ford vetoed the amendments to FOIA, on the advice of Chief of Staff Donald Rumsfeld and Deputy Chief of Staff Richard Cheney that, among other concerns, the amendments would go too far in allowing judicial review of classified documents.22Antonin Scalia weighed in with arguments that the amendments were unconstitutional.23 Congress overrode the veto.

¶9 Congress tinkered with FOIA more than the next twenty years, tightening loopholes,24 but the next major amendment was in 1996, when the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) was passed.25 Two major provisions of E-FOIA require that:

Each agency, in accordance with published rules, shall make available for public inspection and copying- . . . copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records. . . .26

For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means.27

¶10 Taken together, these two provisions require every agency to create “electronic reading rooms,” and many agencies have in fact done so. The Department of Justice (DOJ) maintains an online list of more than a hundred department and agency electronic reading rooms.28 Unfortunately, a 1999 study of agency compliance concluded that no agency had met the statutory deadlines for compliance with E-FOIA.29 Agencies have not rushed to acquire the technical infrastructure necessary to comply with laws requiring Web posting of documents that agencies don’t want to disseminate in the first place.30< /p>

¶11 The FOIA has been amended since 1996. In 2002, Congress added a blanket prohibition on intelligence agencies providing documents to foreign governments.31 A much broader exemption was passed as part of the Homeland Security Act of 2002. Section 214 of the Act 32exempts any information provided voluntarily by non-Federal entities or individuals that relates to infrastructure or other vulnerabilities to terrorism, which means that any business can protect information from a FOIA request merely by providing it to the Department of Homeland Security. This exemption is broad enough to overwhelm the balance FOIA has mandated between disclosure and se crecy.33

DOJ’s Interpretation of FOIA Changes From Presumptionof Disclosure to Promise to Defend Return

¶12 In every new administration, the attorney general sends out a memorandum discussing the Department of Justice’s implementation of FOIA.34The Clinton administration enhanced FOIA’s statutory presumption of disclosure. Even before the passage of the E-FOIA, Attorney General Janet Reno instructed all agency and department heads that documents should be provided to requestors unless the “agency reasonably foresees that disclosure would be harmful to an interest protected by” a particular exemption; she further indicated that doubts about whether or not a document fell within an exemption should be resolved in favor of disclosure.35Since FOIA was enacted to overcome the reluctance of agencies to reveal their workings to the public, the attorney general’s memorandum sends a message, one way or the other, on how agency stubbornness in releasing documents will be viewed from above.

¶13 During the early days of the Bush administration, Attorney General John Ashcroft sent out his interpretation of FOIA’s statutory presumption in favor of disclosure:

Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information. . . When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.36

¶14 Bush’s Chief of Staff Andrew Card sent another memorandum further encouraging agencies to withhold documents in response to FOIA requests, asking agencies to withhold “any information that could be misused,”37 an extremely broad category. In the additional guidance provided to agencies by a document attached to Card’s memorandum (and prepared at his request), each agency was granted the discretion to determine what information should be “controlled” as “sensitive but unclassified,” even if it did not otherwise meet the standards for classification or reclassification:

[D]epartments and agencies maintain and control sensitive information related to America’s homeland security that might not meet one or more of the standards for classification set forth in Part 1 of Executive Order 12958. The need to protect such sensitive information from inappropriate disclosure should be carefully considered, on a case-by-case basis, together with the benefits that result from the open and efficient exchange of scientific, technical, and like information. All departments and agencies should ensure that in taking necessary and appropriate actions to safeguard sensitive but unclassified information related to America’s homeland security, they process any Freedom of Information Act request for records containing such information in accordance with the Attorney General’s FOIA Memorandum of October 12, 2001, by giving full and careful consideration to all applicable FOIA exemptions.38

¶15 The proponents of open government on the House Committee on Government Reform were so angered by the Ashcroft Memorandum that when they revised the Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974, which is edited and published from time to time by the committee, they included the following statement in the introduction: “Above all, the statute requires Federal agencies to provide the fullest disclosure of information to the public. . . . Contrary to the instructions issued by the Department of Justice on October 12, 2001, the standard should not be to allow the withholding of information whenever there is merely a ‘sound legal basis’ for doing so.”39. ¶16 Under these memoranda, agencies have been given the green light to deny FOIA requests, knowing that if there is any “sound legal basis” for doing so, the DOJ will defend them. Not surprisingly, 31% of FOIA officers responding to a 2003 GAO survey (57 of 183) said they were less likely to make discretionary disclosures of information; of these, 75% were primarily influenced by the Ashcroft Memorandum.40 Forty-eight percent of those responding to the GAO survey (88 of 193) noticed no change in making discretionary disclosure.41It is impossible to tell those who did not notice a change in making discretionary disclosures previously had been enthusiastic or obstructive in complying with FOIA requests, but it is true that agencies have a long history of preferring to keep their information secret.42

¶17 While some agencies appear unaffected by the Ashcroft Memorandum, it does make it more likely that a request will be denied. The only way to resolve a dispute over an agency’s refusal to honor an FOIA request is through a lawsuit.43 But the time and monetary cost of a suit means that access for most individuals is effectively denied, making public interest groups the default defenders of access to information. As a consequence, many lawsuits have been filed by public interest groups since October 2001, testing whether the courts will continue to virorously enforce FOIA.

¶18 There have been attempts in the 108th and the 109th Congresses to foreclose the Attorney General’s regulatory interpretation by enacting a statutorily mandated regulatory presumption in favor of disclosure. Representative Henry Waxman introduced the Restore Open Government Act of 2004 in the 108th Congress.44 This bill seems at first glance to be unnecessary, in light of the statutorily mandated presumption of disclosure, but the bill is directed at removing the clout the DOJ’s interpretation has on actual agency responses. This bill specified agency level responses to FOIA requests, repudiated the Ashcroft and Card memoranda, required a presumption in favor of disclosure, reinstated President Reagan’s executive order on the release of presidential records, and reduced excessive classification.45 Although the bill died in committee, it has been reintroduced in the 109th Congress.46Two other bills promoting FOIA reform introduced in the 109th Congress are the OPEN Government Act of 2005 47and the Faster FOIA Act.48 The OPEN Government Act would limit the ability to create new exemptions by implication; apply FOIA to outsourced recordkeeping functions; protect access to FOIA fee waivers for legitimate journalists, regardless of institutional asso ciation (including bloggers and other Internet-based journalists); improve reporting requirements; require agencies to give people seeking documents a tracking number within ten days and to set up telephone or Internet systems allowing them to learn the status and estimated completion date; impose penalties for failure to comply, including the loss of all exemptions (except national security, personal privacy, proprietary information or a ban in another law); and determine the appropriate funding levels needed to ensure agency FOIA compliance.49 The Faster FOIA Act would establish a sixteen member advisory Commission on Freedom of Information Act Processing Delays and would make recommendations to Congress and the president about reducing delays in processing FOIA requests.50

¶19 While the Bush administration is facilitating agencies’ bureaucratic reluctance to provide information, access to information is also being blocked on another front.

¶20 After September 11, 2001, massive amounts of information began to disappear from government agency Web sites. In some instances, the terrorist attack was used as the explicit basis for the removal. In others, the information has just disappeared.51

¶21 The Environmental Protection Agency’s (EPA) removal of information from its Web site is a prime example of such action conducted ostensibly in the name of national security. After September 11, the EPA removed certain risk management plans (RMPs) from its site,52 despite clear statutory directives that only the Offsite Consequence Analyses (OCA) portions of the RMPs were exempted from Internet posting.53 RMPs contain information about chemicals being used in plants, including a hazard assessment, a prevention program, and an emergency response plan. In a recent round of rulemaking, the EPA acknowledged that Internet disclosure of RMPs that did not include the OCA information presented no unique increased threat s of terrorism.54 Nevertheless, RMPs are still missing from the EPA’s Web site.55 Environmental groups are calling for “mandatory security restrictions such as establishing anti-terrorist technology standards and a general duty clause for responsible, anti-terrorist chemical storage and handling” as a responsible substitute for the wholesale removal of information about the dangers to communities of certain chemicals.56

¶22 Another instance of “Web scrubbing” in the name of national security is the Federal Energy Regulatory Commission’s (FERC) reconsideration of its Internet access polices in the wake of September 11th. The agency removed tens of thousands of documents regarding dams, pipelines, and other energy facilities.57 The documents have not been replaced and public requests for information are now channeled to a special request page that requires registration (including the requestor’s social security number) and agreement with limitations on the use and disclosure of any information provided.58The rationale for the removal may have a surface appeal, but a 2003 investigation strongly suggests that advancing the economic interests of favored i ndustries or keeping executive actions from being scrutinized are the actual motivations.59 The five-month investigation resulted in a long list of examples of information either removed from the Internet or prevented from ever getting there.60One fully documented instance involved FERC’s refusal to give residents living near a proposed natural gas pipeline the list of the landowners potentially affected.61The information had previously been public, but FERC used terrorism as an excuse to deny a request for the information.62 The landowners, of course, wanted to organize against the pipeline. The inability to get information affected their ability to mount effective opposition and the pipeline was approved.63

¶23 Even more frustrating to advocates who need access to information about dangerous plants, removal of such information by the EPA and FERC has not improved security at affected plants. According to a Congressional Research analysis, in 2002 the Pittsburgh Tribune-Review investigated the security at potentially dangerous plants that were required to file RMPs and concluded that security was so bad that a reporter with a camera “could walk or drive right up to tanks, pipes, and control rooms considered key targets for terrorists.64

¶24 In a recent report prepared by the RAND Corporation, there is a detailed analysis of the EPA’s Toxic Release Inventory (TRI) information from Envirofacts and the TRI Explorer, as it affected specific facilities.65The report first noted the public benefits of TRI data:

First, it has helped communities better prepare for possible emergencies. Second, since industries are required by law to submit detailed tracking information, it has helped industries to understand and track hazardous chemicals at their facilities more effectively and to motivate them to reduce their use and emissions of such chemicals because of the public visibility of such information. Third, environmental and community watchdog groups have used this information to help put pressure on facilities to reduce their use and emissions of such chemicals and to improve local emergency preparedness. In fact, it is well known in the pollution prevention field that public TRI declarations have helped motivate many companies to implement more pollution prevention activities.66

The report then reviewed the many alternate sources for TRI information about a facility,67and concluded that because the TRI data has low usefulness, is widely available elsewhere, and is public domain information, it would be difficult and unnecessary to restrict access to the information.

It would also diminish the public good that comes from providing local community access to information that can significantly affect the well-being of citizens. In addition, such restriction would not enhance security, since the information provided by TRI would still be easy to obtain from other sources.68

¶25 The RAND report balances the public good that comes from making information available with the risk of terrorists actually using the information. It concluded that the removed information had the benefits of assisting law enforcement, advancing knowledge, informing people about environmental risks, and helping communities prepare and respond to disaster.69Since most information identified in the report was simply not specific enough to actually facilitate an attack, the missing information did not uniquely benefit terrorists.70 The RAND report concluded that there was no need to restrict public access to most geospatial information.71There is no need in the trade-off between security and openness to deny citizens access to such information. Much of the information the government is now trying to hide on the grounds of “national security” is accessible elsewhere and the only people harmed by its disappearance are those with limited ability to access it. The RAND report examined 629 federal databases and concluded that “fewer than 1 percent of federal data are both unique to federal sources and potentially useful to attackers’ information needs, compared with about 6 percent that is potentially useful to the attacker and about 94 percent that our assessment found to have no usefulness or low usefulness.”72

¶26 Recent testimony by Thomas S. Blanton, director of the National Security Archive, discussed the many dangers of secrecy. With only 10 to 20% of government documents properly classified and with new categories of pseudo-classified documents preventing access to even more information, the benefits of the broad dissemination of information are being overlooked.73 Beneficial examples of open access include the captures of the Unabomber only after the FBI reluctantly agreed to give his crank letters to the New York Times and the Washington sniper only after a license plate number, kept secret by law enforcement, was leaked to the press. Additionally, the only instance cited by the 9/11 Commission that might have prevented the attacks was a statement by the terrorists’ paymaster’s comment that had they known that Zacarias Moussaoui had been arrested at a flight school in Minnesota, bin Laden would have called off the attacks.74

The 9/11 Commission concluded that only “publicity” could have “derailed the attacks.”75Truly, publicity is the best disinfectant.76

¶27 Protecting the government from criticism is another reason that agency Web pages are removed. On April 8, 2005, the Defense Technical Information Center Joint Electronic Library took its entire library offline, apparently because several of the library’s holdings, including the Joint Doctrine for Detainee Operations, were about to be criticized in the press.77Although most of the library was put back online the following week, the offending articles are still missing.

¶28 Other Web pages that have been removed from agency Web sites have no nexus at all with national security. The Web pages removed simply do not reflect the current administration’s political agenda. Actions by the Department of Labor (DOL) exemplify this kind of agency Web scrubbing. According to a report issued by the National Council for Research on Women, the DOL removed information from its Web site that had long been available to help women negotiate workplace rights.78 An ongoing series of fact sheets on women workers is no longer available, and a DOL publication, Don’t Work in the Dark-Know Your Rights, also has been taken off the DOL’s Women’s Bureau page.79

¶29 The council’s report also documents the removal of information on women’s health from the National Cancer Institute Web site, specifically that concerning the absence of a link between abortion and breast cancer.80 And information about condom use was removed from a Centers for Disease Control and Prevention Web site.81

¶30 Just after the 2004 election, the Civil Rights Commission removed twenty public reports from its Web site. The reports that were removed were critical of the Bush Administration, including one called Redefining Rights in America: The Civil Rights Record of the George W. Bush Administration.82Seventeen of the reports are available on other Web sites.83

¶31 One agency has invited public comment prior to removing information from the Internet. In November 2004, the National Geospatial-Intelligence Agency (NGA), which publishes international navigation and planning charts in English, announced its intention to withdraw the materials from its Web site in October 2005. According to announcement by the agency in November 2004, the action was intended to accomplish several objectives, including:

safeguarding the integrity of Department of Defense (DoD) aeronautical navigation data currently available on the public Internet; preventing unfettered access to air facility data by those intending harm to the United States, its interests or allies; upholding terms of bi-lateral geospatial data-sharing agreements; avoiding competition with commercial interests; and avoiding intellectual property/copyright disputes with foreign agencies that provide host-nation aeronautical data.84

The agency’s decision to make national security a basis for removing the documents from the Internet is startling, given that the announcement came after the publication in April 2004 of a RAND report commissioned by NGA85 which concluded that fewer than 1% of geospatial information available online posed a security risk.86 Based on statements from John Baker, coauthor of the RAND report, Naomi Lubick wrote in Geotimes that “[i]t is better to keep data available in general . . . and restrict layers that may be more sensitive, protecting them with passwords or other measures to ensure that only the right people obtain access.”87

¶32 The Overseas Basing Commission prepared a report that criticized Secretary of Defense Donald Rumsfeld’s strategy for streamlining the military and posted the document on its Web site. After the Pentagon asserted that the report contained classified material, the commission removed the report from the site.88 The commission claimed that the report was based only on public information and that the critical nature of the report was the real problem.89

¶33 The FBI asked the Senate Judiciary Committee to remove letters that had already been posted on its Web site, and the committee complied.90The letters had been posted after briefings on allegations made by Sibel Edmonds, previously a contract linguist for the FBI, who alleged that the FBI had “mishandled information that might have tipped the government to the Sept. 11 terrorist attacks before they occurred.” 91In May 2004, the Justice Department asserted that the information in the briefings and information resulting from the briefings was classified; the Judiciary Committee removed two of the letters from its Web site.92While Edmonds has been prevented from testifying before the 9/11 Commission on grounds of national security,93and her lawsuit for wrongful termination has been dismissed on the same basis,94 the FBI has agreed that the letters cannot be retroactively classified and has entered into a judgment that the letters are properly the subject of an FOIA request.95

Recovering Electronic Content After Its Removal From Agency SitesReturn

¶34 Since pages on agency Web sites are “records” under FOIA, even those that have been taken down are properly the subject of a FOIA request. FOIA “grant[s] a right to obtain and copy records held by government entities . . . including electronic formats.”96In 1996, E-FOIA amended the definition of record to include electronic formats,97and required agencies to make all records created after November 1, 1996 available by computer communications within one year after the record is created.98 The DOJ interprets FOIA as requiring Web pages to be republished: “If you request records that already exi st in an electronic format, the FOIA requires agencies in almost all cases to provide these records to you in that same format, if that is what you prefer.” 99 In its explanation of the changes E-FOIA made to the definition of agency records, the DOJ also defines agency records in a manner that includes Web pages:

This definition appears to confirm existing general practices of treating information maintained in electronic forms as subject to the FOIA and, while it references no particular electronic item such as computer software, seems to broadly encompass information maintained in electronic form.100

¶35 Prior to the passage of E-FOIA, there were several cases limiting rights to computer access; the intent of the E-FOIA was to explicitly overrule those cases.101 The House Report that accompanied the Act certainly defines records broadly enough to include Web pages, which existed in 1996, as well as future technologies.102 There is a general test for whether or not the subject of a FOIA request is an agency record: “whether (1) the material has been created or obtained by the agency; and (2) the agency is in control of the material.”103

¶36 It is hard to imagine a straight-faced denial that a Web page created and hosted by an agency is not an agency record, even though no case defining agency records in the FOIA context has expressly addressed a Web page posted on the Internet.104 The language of the E-FOIA amendments and the legislative history make it clear that making new “electronic formats” available by putting them in “electronic reading rooms” by “electronic means” meant getting documents, whether originally created in paper or on the Web, and putting them on the Internet. That certainly is the interpretation of the DOJ: “The Electronic FOIA amendments embodied a strong statutory preference that electronic availability be provided by agencies in the form of online, Internet access–which is most efficient for both agencies and the public alike. . . . “105 Once on the Internet as Web pages, documents do not lose their status as agency records. The impetus of E-FOIA has been to extend disclosure requirements to all records, regardless of their format, and Web pages should be no different.106

¶37 Once information has been posted on the Internet, it has entered the FOIA form of the “public domain.”107 Web pages are by their nature widely published, and a FOIA request for a Web page that has been taken down is in reality just a request to have the same information in the same format republished. Mere publication of classified information does not automatically put the information in the public domain, but if the information is “well publicized,” then “suppression . . . would frustrate the aims of the FOIA without advancing countervailing interests.”108 Web publication has been accepted, albeit reluctantly, by the DOJ as so “well publicized” that the documents posted on the Inte rnet cannot be recalled.109 Consequently, such material cannot be reclassified.110 The “well publicized” rule is set forth in Afshar v. Department of State: the person requesting agency records under FOIA is required to “bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.”111 In the case of Web pages removed from the Internet, the person requesting agency records will be able to carry this burden. The information will be identical in every way. The disclosure will be specific and will exactly m atch; a requestor will only be asking for an exact duplicate of what was previously available.

¶38 While nothing in FOIA prevents removal of information from agency Web sites, FOIA does require that information previously published be made available, in an electronic format. If the Web page was previously well publicized on the Internet, none of the FOIA exemptions will apply. There are other statutes directing agencies to post information on the Web, such as portions of the Paperwork Reduction Act of 1995 112 and the E-Government Act of 2002.113 Once the information has been posted on the Internet, permanent public access is the statutory goal.114 Although Web pages differ from written records in the ease with which they can be removed from public access, they are still government documents and, as such, are records that form a part of the history of the country. The Federal Records Act prohibits the destruction of government records, except in accordance with statutorily mandated procedures.115

¶39 Despite these statutory mandates for transparency in government and the retention and preservation of agency materials, a recent report commissioned by Representative Henry A. Waxman found that the Bush Administration has “radically reduced the public right to know,”116 and that its policies “are not only sucking the spirit out of the FOIA, but shriveling its very heart.” 117The report also concludes that “[n]o president in modern times has done more to conceal the workings of government from the people.”118

¶40 E-FOIA may provide some cumbersome relief from this climate of secrecy. If agency Web pages removed from the Internet are considered agency records, then E-FOIA requires agencies to make electronic copies available of “all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent [FOIA] requests. . . .”119 If concerned groups make multiple FOIA requests for removed Web pages, the agency is obligated to make those documents available in its electronic reading room. There is no overall standard for determining how many requests will trigger the reading room requirement.120However, many agencies have published regulations about repeatedly requested records.121The majority of them leave the determination of how many requests it takes, or whether or not records are likely to be repeatedly requested, entirely to the agency (subject to the absolute requirement that such documents must be posted online). Those agencies that do specify a number to limit agency discretion specify between three and five requests.122 Since the electronic reading room requirements were intended to avoid duplicative efforts and increase access to useful materials,123 the small number is not surprising.

¶41 Public interest groups interested in recovering removed Web pages could create and publicize places on their Web sites where individuals could make concerted requests for the Web pages by posting something like the FOI Letter Generator.124 An additional radio button could give users the option to send a copy of their request to the host of the Web site, so that any eventual administrative appeal or lawsuit seeking to have an item permanently posted to the agency’s reading room could state with assurance the number of requests that had been made. The rule is that if enough people ask, the material must be posted to an electronic reading room. And the number of people does not have to be large. Three requests could be sufficient.

¶42 The use of Web sites and letter generators to make a significant impact on federal policy is not new. A recent example is the concerted efforts of the Parents Television Council and the American Family Association Commission, who have bombarded the Federal Communications Commission (FCC) with copies of the same Internet-generated letters. Almost 100% of the indecency complaints the FCC received in 2003 and 2004 were from these two groups.125There are sufficient numbers of people interested, both personally and through various nonprofit groups, in each of the categories of Web pages that have been removed from the Internet to make multiple FOIA requests a reasonable possibility. Then, of course, the requestors will have to deal with the aftermath: the potential refusal of the requests, administrative app eal, and filing suit.126

¶43 An agency climate of nondisclosure will result in more lawsuits being filed to compel disclosure. The agency response to a FOIA request that Web pages removed from the Internet be provided in the same format may not be immediately favorable. Multiple FOIA requests for the same Web pages may not have a higher chance of success. Only pages that have actually been produced in response to an FOIA request would be required to be posted to an agency’s electronic reading room,127 but to avoid a second lawsuit over where the Web pages should be posted, any lawsuit to enforce compliance with multiple FOIA requests for the same pages (when the multiple requestors all want them produced as Web pages128) should include a request to the court to specify where the pages should be posted. The district court should have discretion, under the Declaratory Judgment Act, to declare where the requested Web pages should be posted.129 Since E-FOIA requires the pages to be posted in the agency’s electronic reading room, a request to do so would not be unreasonable.

¶44 Many agencies have been slow to follow the requirement that records that have been or will become the subject of repeated requests be posted in electronic reading rooms.130 While courts are still deferring to agency characterizations of documents as exempt for a variety of security-based reasons,131 the burden is still on the agency to prove that there is an exemption.132 For example, in Gordon v. Federal Bureau of Investigation, Judge Charles R. Breyer found that the government had not met its burden of proving an exempti on to the plaintiffs’ claims for information about the “no-fly” list. The court held:

“The Supreme Court has interpreted disclosure provisions broadly, noting that the act was animated by a ‘philosophy of full agency disclosure.'” Nonetheless, FOIA contains nine exemptions which a government agency may invoke to protect certain documents from public disclosure. “Unlike the disclosure provisions of FOIA, its statutory exemptions ‘must be narrowly construed.'”

The agencies resisting public disclosure-here, the FBI and TSA-have “the burden of proving the applicability of an exception.” “That burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document.”133

Judge Breyer found that the agencies had labeled information that was innocuous as sensitive, and had “offered no justification for withholding such information.”134

¶45 The Bush Administration’s interpretation of FOIA dispenses with the presumption of access and essentially gives agencies carte blanche to deny access. Since the number of FOIA requests has increased dramatically,135 administrative appeals and lawsuits have become the norm. Nonetheless, only one of these lawsuits has been directed at information that has been removed from the Internet. The Project on Government Oversight v. Ashcroft suit136 involved the DOJ’s efforts to classify letters from Senate Judiciary Committee members to the FBI and the Justice Department regarding Sibel Edmonds; the letters had been posted on the Senate Judiciary Committee Web site but removed when the DOJ asserted that information in the letters was classified.137 The complaint alleged that the letters could not be classified once posted on the Internet,138 and the suit was settled by the government’s agreement that the documents were subject to an FOIA request and the assurance that the plaintiffs would not be subject to any liability for posting the documents on the Internet.139The suit fell short of an enforc eable order requiring an agency to post documents in an electronic reading room. But the clear language of E-FOIA compels such a conclusion.

¶46 The problem of enemy access to unclassified but possibly dangerous information is not a new one. During World War II, a German spy named Edmund Heine gave a German car manufacturer reports about the American aviation industry. The information was “lawfully accessible” from ordinary publicly available sources, including books, magazines, technical journals, trade fairs, and newspapers. The spy’s conviction for failing to register as an foreign agent was upheld, but the espionage conviction was overturned. Commentator Edward Lee quotes the Second Circuit’s conclusion, “‘Certainly it cannot be unlawful to spread such information within the United States,'”140 and then goes on to note that “[a]lthough the Second Circuit’s decision did not explicitly use the term ‘public domain,’ subsequent courts and commentators have done so in explaining this limitation on espionage law.”141

¶47 According to Lee, the court in Heine was “[s]olicitous of ‘the spread of information’ that was lawfully available to the public,”142 that is, in the public domain. Once in the public domain, it is protected by the First Amendment.

[T]here is a danger that the government may prevent members of the public from using information already in the public domain, whether it be information related to national security, information revealed in open court or related to criminal or governmental proceedings, information subject to classification, or information sought under FOIA. But, in each of these areas, the public domain acts as a restraint against the government’s attempts to restrict the flow or use of information already available to the public. The cases recognize that, while the government has an interest in maintaining secrecy, the interest is generally outweighed by the public’s interest in the spread of the information once it is already available to the public. Paralleling the Copyright Clause’s bar against removing material from the public domain through the grant of IP, the First Amendment prohibits the government from removing material from the public domain throu gh secrecy.143

¶48 E-FOIA was a statutorily mandated expansion of the public domain. E-FOIA requires agencies to create an online location “where the public can obtain immediate access to government records.”144 If Web pages are removed, E-FOIA gives the requestor the right to require that the information be provided as a Web page. When more than two requestors seek access to the information through a FOIA request, the Web pages are required to be posted to the reading rooms.

¶49 Agencies have been and continue to be unprepared to deal with the requirements of E-FOIA.145 The DOJ has acknowledged that there has been incomplete compliance with the requirements of E-FOIA, particularly the mandate to make certain categories of information available to the public electronically, including “records that are ‘frequently requested’ by FOIA requesters, which must be made available in their FOIA-processed form.”146 Information removed from the Internet had already entered the public domain by virtue of its prior publication on the Internet and is therefore “releasable under FOIA.”147 Even conservative think tanks like the RAND Corporation have concluded that the government has been overzealous in removing information from the Internet that citizens need to access. Open access to information has had an unlikely supporter in the person of Donald Rumsfeld who, in 1966, said in support of the passage of FOIA: “[D]isclosure of government information is particularly important today because government is becoming involved in more and more aspects of every citizen’s personal and business life, and so access to information about how government is exercising its trust becomes increasingly important.”148

¶50 Groups interested in disclosure must band together to challenge the removal of documents from the Internet and the current administration’s shifting of the burden of producing documents. This can be accomplished by making concerted FOIA requests for the missing Web pages and engaging in such administrative and judicial follow-up as is necessary. Organizations such as the American Federation of Scientists, Project on Open Government, National Security Archive, and individual scholars and citizens have uncovered massive amounts of information the government might have wished to keep secret.149 But secrecy in government should be the exception, not the norm; that is what the Freedom of Information Act was intended to accomplish. FOIA has been enacted, amended, and repeatedly tinkered with the years to accompl ish openness in government. But it has always needed the actions of concerned citizens to keep it vital.

4.See MARY THORN, NAT’L COUNCIL FOR RESEARCH ON WOMEN, MISSING: INFORMATION ABOUT WOMEN’S LIVES (2004), available at http://www.ncrw.org/misinfo/report.pdf. The report details, for example, the deletion of information on condom use from Web sites, id. at 8, and the removal of the Handbook on Women Workers and fact sheets on women workers from the U.S. Department of Labor site, id. at 12.

9.HERBERT N. FOERSTEL, FREEDOM OF INFORMATION AND THE RIGHT TO KNOW: THE ORIGIN AND APPLICATION OF THE FREEDOM OF INFORMATION ACT 10-28 (1999); see also S. REP. NO. 89-813, at 3 (1965) (“After it became apparent that section 3 of the Administrative Procedure Act was being used as an excuse for secrecy, proposals for change began.”).

29. Patrice McDermott, An OMB Watch Update Report on the Implementation of the 1996 “E-FOIA” Amendments to the Freedom of Information Act, GOV’T INFO. INSIDER, Spring-Summer 1999, available athttp://www.gao.gov/new.items/d02493.pdf. The report specifically found that of sixty-four agencies examined, 11% did not have a useful FOIA Web presence, 89% had varying compliance rates, and, as of November24, 1999, no agency had complied fully with E-FOIA. McDermott found that the primary problems were lack of funding, lack of OMB guidance, lack of encouragement by DOJ to comply, and lack of agency emphasis on making public access to government information a priority.

33. The Restoration of Freedom of Information Act of 2003, S. 609, 108th Cong. (2003), and a companion bill, H.R. 2526, 108th Cong. (2003), were introduced to narrow the exemption. Although the bills died in committee, the Senate bill has been reintroduced as the Restoration of Freedom of Information Act of 2005, S. 622, 109th Cong. (2005).

34. For a discussion of the role of the attorney general’s memorandum in each new administration, see Kristen Elizabeth Uhl, Comment, The Freedom of Information Act Post-9/11: Balancing the Public’s Right to Know, Critical Infrastructure Protection, and Homeland Security, 53 AM. U. L. REV. 261, 269-70 (2003).

36. Memorandum from John Ashcroft, Attorney General, to Heads of All Federal Departments and Agencies, The Freedom of Information Act (Oct. 12, 2001) (emphasis added), available athttp://www.usdoj.gov/04foia/011012.htm.

37. Memorandum from Andrew H. Card, Jr., Assistant to the President and Chief of Staff, to the Heads of Executive Departments and Agencies, Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security (Mar. 19, 2002), available athttp://www.usdoj.gov/oip/foiapost/2002foiapost10.htm: I asked the Acting Director of the Information Security Oversight Office and the Co-Directors of the Justice Department’s Office of Information and Privacy to prepare guidance for reviewing Government information in your department or agency regarding weapons of mass destruction, as well as other information that could be misused to harm the security of our nation and the safety of our people. Their guidance is attached, and it should be distributed to appropriate officials within your department or agency, together with this memorandum, to assist in your undertaking an immediate reexamination of current measures for identifying and safeguarding all such information at your department or agency.

38. Memorandum from Laura L.S. Kimberly, Acting Director, Information Security Oversight Office, Richard L. Huff & Daniel J. Metcalfe, Co-Directors, Office of Information and Privacy, Department of Justice, to Departments and Agencies (Mar. 19, 2002) (emphasis added), available athttp://www.usdoj.gov/oip/foiapost/2002foiapost10.htm#guidance. Some agencies have jumped on the “sensitive but unclassified” (SBU) bandwagon by creating multiple categories of pseudo-classifications that flag material that should be carefully considered before release, as the Centers for Disease Control did when it created twenty-seven new categories of SBU. Office of Sec. & Emergency Preparedness, Centers for Disease Control & Prevention, Sensitive But Unclassifi ed Information (July 22, 2005), available athttp://www.fas.org/sgp/othergov/cdc-sbu.pdf.

39. A CITIZENS’ GUIDE ON USING THE FREEDOM OF INFORMATION ACT AND THE PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS, HR. REP. NO. 109-226, at 3 (2005) (emphasis added).

43. The 1974 amendments to FOIA expedited judicial review by setting a ten-day limit for the initial response and a twenty-day limit for a decision on the administrative appeal from a denial or failure to respond within ten days. 5 U.S. C. §§ 552 (a)(6)(A)(i)-(ii) (2000).

52. The following notice was posted by the EPA (and last updated Oct. 22, 2001): “In light of the September 11 events, EPA has temporarily removed RMP Info from its website. EPA is reviewing the information we make available over the Internet and assessing how best to make the information publicly available. We hope to complete that effort as soon as possible.” Chem. Emergency Preparedness & Prevention Office (CEPPO), U.S. Environmental Protection Agency, RMP Info-Temporarily Unavailable, http://www.epa.gov/OEM/rmp_unavailable.htm (last visited Oct. 26, 2005).

54. Accidental Release Prevention Requirements, 69 F.R. 18819, 18824 (Apr. 9, 2004). The Agency also agrees with the comment that removing OCA data from executive summaries would reduce or eliminate any risk that Internet posting of executive summaries might pose. The final regulations on posting this information on the Internet are at 40 C.F.R. § 1400.13 (2005). Under 42 U.S.C.§ 7412(r)(7)(H)(iii) (2000), these regulations supersede FOIA requests for the information covered by the regulations. However, the remainder of the information contained in the RMPs is not governed by these sections and are supposed to be available on the Internet. See OBM Watch, supra note 51, http://www.ombwatch.org/article/articleview/213/1/104/#EPA%20 (risk management plans removed from EPA Web site).

59. Schmitt & Pound, supra note 3, at 18, 20, 22; Now: Veil of Secrecy (PBS television broadcast Dec. 12, 2003) (transcript availableathttp://www.pbs.org/now/transcript/transcript246_full.html). This was a joint investigation by U.S. News and World Report and the Public Broadcasting Service (PBS). Although the information provided by the published article and contemporaneous broadcast transcript frequently overlap, some is available in one source but not the other. 60. The article details missing energy information, tire and safety information, environmental information, transportation information, and the potential for misuse of critical infrastructure information laws to shield industry. Id. 22, 24-25, 27-28; Now: Veil of Secrecy, supra note 59.

64. LINDA-JO SCHIEROW, CONGRESSIONAL RESEARCH SERV., CHEMICAL PLANT SECURITY 12 (CRS Report No. RL31530, 2005) (quoting Carl Prine, Lax Security Exposes Lethal Chemical Supplies, PITTSBURGH TRIBUNE-REVIEW, Apr. 7, 2002). Two of the plants the reporters visited were on the list of 123 plants nationwide where a worst-case scenario would affect more than 100,000 residents. “The report concluded that . . . access was easy to some sites owned by corporations with large security budgets; employees, customers, neighbors, and contractors ‘not only let a stranger walk through warehouses, factories, tank houses and rail depots, but also gave directions to the most sensitive valves and control rooms’; and access to 19 sites was allowed due to ‘unguarded rail lines and drainage ditches, dilapidated or nonexistent fences, open doors, poorly angled cameras an d unmanned train gates.'” Id. (quoting Carl Prine, Chemicals Pose Risk Nationwide, PITTSBURGH TRIBUNE-REVIEW, May 5, 2002). Walking around would give terrorists the detailed information needed to plan an attack that is not available in RMPs (which provide only the more general information needed to identify a site).

67.Id. at 84 (noting that the information is also available from HUD’s E-MAPS, the Department of Commerce’s LANDVIEW, RTKNet from the Unison Institute, and Scorecard from Environmental Defense). State databases also contain some of this information. Id. at 85.

70.Id. at xxix. An example of information specific enough to be useful to a terrorist might be the location of a “choke point in a major power grid or telecommunications network.” Id.

71.Id. at 125 (“Given the ready availability of alternative data sources, restricting public access to such geospatial information is unlikely to be a major impediment for attackers in gaining the needed information for identifying and locating their desired U.S. targets.”).

72.Id. at 69-70. This analysis means that the actions of the National Imagery and Mapping Agency in ending the online sale of large-scale maps to the public, OMB Watch, supra note 51, http://www.ombwatch.org/article/articleview/213/1/1#NIMA, cannot be justified on national security grounds. The scale of the maps does not give a terrorist the detailed information needed to carry out a planned attack, so removing the maps does nothing to prevent harm and keeps the American public from getting easy access to useful information.

79.Id. at 12. A researcher’s attempt to get a copy of the publication or other information on pay equity or worker’s rights for women from the Women’s Bureau extended to direct telephone contact, but the researcher was told “that no publications on workers’ rights and fair pay per se were available at that time from the Bureau.” Id. at 13. Another publication, the Handbook on Women Workers, has been removed and has never been re-released. Id. at 12.

80. The National Cancer Institute had had a report on its Web site informing women that there was no scientific basis for a suggested link between abortion and breast cancer. In 2002, that fact sheet was removed and replaced with a publication stating that studies showing the abortion/breast cancer correlation were inconsistent. Id. at 7. Only after a hundred experts gathered to hold a hearing on the issue was the National Cancer Institute forced to re-post the information that there was no increased risk of breast cancer associated with abortion. Abortion and Breast Cancer, N.Y. TIMES, Jan. 6, 2003, at 20.

81. Adam Clymer, Critics Say Government Removed Sexual Material From Websites to Push Abstinence, N.Y. TIMES, Nov. 26, 2002, at A18. Although the CDC said that the information was removed in 2001 to be updated, the Web site has not been updated and abstinence is being promoted instead.

83.See, e.g., The Memory Hole, Reports Purged From the Website of the Civil Rights Commission, http://www.thememoryhole.org/usccr/purged.htm (last visited Oct. 27, 2005). The most critical report had been catalogued as a government document by the Government Printing Office. U.S. Comm’n on Civil Rights, Redefining Rights in America: The Civil Rights Record of the George W. Bush Administration, 2001-2004 (Sept. 2004), available athttp://purl.access.gpo.gov/GPO/LPS54680. The use of PURLs (permanent uniform resource locators) for documents that have been cataloged as government documents has provided a means of access to some Web pages that have been removed by agencies. As the former superinte ndent of documents stated in 2002:

A few agencies have removed electronic information products that we have cataloged and pointed to as part of the FDLP/Electronic Collection. We are redirecting the PURLs to agency notices or our own notice to explain the situation. A partner agency, the Department of Energy Office of Scientific and Technical Information, has pulled over 5,800 research reports from three national laboratories that were included in the Information Bridge. We have requested that these be reviewed and returned, as appropriate, for public access. Other agency withdrawals have been information beyond the purview of the FDLP.

86. “[W]e estimate that fewer than 1 percent of federal data are both unique to federal sources and potentially useful to attackers’ information needs, compared with about 6 percent that is potentially useful to the attacker and about 94 percent that our assessment found to have no usefulness or low usefulness. Given these results, we conclude that only a few of federal agency geospatial sources appear significant to attackers’ needs.” BAKER ET AL., supra note 8, at 70. The same analysis would apply to the Nuclear Regulatory Commission’s (NRC) action in completely shutting down its 700,000 document online reading room, then only restoring part of the library. Nuclear Commission Restores Portions of Online Library, OMB WATCHER, Nov. 15, 2004, http://www.ombwatch.org/article/articleview/2517/1/1. The offending documents were floor plans from several university nuclear labs. NRC Removes All Information From Its Public Website, OMB WATCHER, Nov. 1, 2004, http://www.ombwatch.org/article/articleview/2498/1/297. The NRC still maintains that the offending documents should not be available online, but scientists disagree; while the “information might aid terrorists a little . . . ‘if someone is determined to do this, it won’t help them much. If someone wanted to find this out, they can.'” Id. (quoting David Albright, Institute for Science and International Security).

97. 5 U.S.C. § 552(f)(2) (2000) (“‘record’ and any other term used in this section in reference to information includes any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format”).

104. For purposes of the Federal Records Act, “‘records’ are defined as all books, papers, maps, photographs, machine readable [i.e., electronic] materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business documentary materials ‘made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business. . . .” Armstrong v. Executive Office of the President, 1 F.3d 1274, 1278 (D.C. Cir. 1993) (citing 44 U.S.C. § 3301 (2000)). The Federal Records Act definition of records has been utilized in FOIA actions. See, e.g., Weisberg v. U.S. Dep’t of Justice, 631 F.2d 824, 828 (1980) (court looked to the provisions of the Federal Records Act in defining the phrase “agency records” in FOIA).

107. Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999) (citations omitted) (In discussing the public domain doctrine, the court noted that “materials normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record. For as we have recently observed, ‘the logic of FOIA’ mandates that where information requested ‘is truly public, then enforcement of an exemption cannot fulfill its purposes.'”); Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279 (D.C. Cir 1992) (“We have held, however, that the government cannot rely on an otherwise valid exemption claim to justify withholding information that has been ‘officially acknowledged’ or is in the ‘public domain.'”); see also Schoenhard, supra note 55, at 512-14; Edward Lee, The Public’s Domain: The Evolut ion of Legal Restraints on the Government’s Power To Control Public Access Through Secrecy Or Intellectual Property, 55 HASTINGS L.J. 91, 123 (2003) (“[I]nformation falls into the public domain when it becomes available to the public (without IP protection).”).

109. Stipulation of Dismissal, supra note 97; see also Letter of Vesper Mei, supra note 97; Schoenhard, supra note 55, at 14 (citations omitted) (“The posting of a web page to the Internet clearly qualifies as disclosure and publication. This argument has been tested in trade secret litigation, where the courts universally have accepted that web publication constitutes public disclosure. Government information that has been posted on the Internet is thus no longer eligible for the national security exemption from the FOIA.”).

110. Exec. Order 13292, § 1.7(c)(2), 68 Fed. Reg. 15315, 15318 (Mar. 28, 2003) allows the reclassification of previously declassified material only if “the information may be reasonably recovered.” Once information is on the Internet, and available in whole or in part on other Web sites, it can’t reasonably be “recovered.” The FBI finally conceded that you can’t unring the bell.

113. 44 U.S.C. §§ 3601-3606 (Supp. 2002). The government has been somewhat slow to understand the need to index, archive and preserve electronic documents, but a plan has been put in place with the E-Government Act. Lee, supra note 107, at 168-69 (citations omitted) (discussing the Act’s requirements that every federal agency “‘establish a process for determining which Government information the agency intends to make available and accessible to the public on the Internet and by other means,'” that a “‘federal Internet portal that will integrate agency Web sites'” be created, and that a “‘public domain directory of public Federal Government Web sites'” be established). Lee thought the “efforts to build an online space for the public domain offer perhaps the greatest step forward for attaining the public domain’s full p romise: the public’s free access to vast amounts of sources of learning.” Id. at 169 (footnote omitted); see also Memo from Joshua B. Bolten, Director, Office of Management and Budget, to All Department and Agency Heads, Implementation Guidance for the E-Government Act of 2002 (Aug. 1, 2003) (establishing a timetable for recordkeeping for government Internet documents), available athttp://www.whitehouse.gov/omb/memoranda/m03-18.pdf.

115. 44 U.S.C. §§ 3301-3303a, 3308-3311 (2000). See U.S. Dep’t of Educ., Federal Records Act, http://www.ed.gov/policy/gen/leg/fra.html (last visited Oct. 30, 2005) (providing excellent overview of the Act’s requirements); HAROLD C. RELYEA, CONGRESSIONAL RESEARCH SERV., ELECTRONIC GOVERNMENT: A CONCEPTUAL OVERVIEW 26 (CRS Report No. RL30745, 2001), available athttp://www.ipmall.piercelaw.edu/hosted_resources/crs/RL30745_Sept_10_2001.pdf (listing some of the information that has become freely accessible on the Internet as result of electronic government initiatives, but noting that two important matters remain to be addressed: the length of time docum ents or data are available on the Web and the subsequent retrieval from online archives, and the ability to make online FOIA requests for records and information not otherwise available online).

116. MINORITY STAFF, COMM. ON GOV’T REFORM, U.S. HOUSE OF REPRESENTATIVES, SECRECY IN THE BUSH ADMINISTRATION 4 (2004) (quoting fax from Philip H. Melanson, Professor of Policy Studies and Director, Policy Studies Program, Univ. of Massachusetts at Dartmouth, to House Government Reform Committee minority staff, The Bush Administration and FOIA (July 10, 2004)), available athttp://democrats.reform.house.gov/features/secrecy_report/pdf/pdf_secrecy_report.pdf.

118.Id. at 31 (quoting e-mail from David C. Vladeck, Associate Professor, Georgetown Univ. Law Center, to House Government Reform Committee minority staff (June 22, 2004)). The top-level trend toward more secrecy is having a trickle down effect on agency action; the FBI, for example, is trying to limit the scope of the searches it must perform in response to a FOIA request. In one case, the FBI performed an automated search that failed to find any documents responding to a request, even though searches through other channels showed that relevant documents had been released in response to a previous FOIA request. The indexes the FBI searched are not complete. Michael J. Sniffen, FBI Tries to Limit Info Searches, CBS NEWS, Jan. 21, 2005, http://www.cbsnews.com/stories/2005/01/21/national/main668365.sht%20ml.

120.The Office of Management and Budget’s failure to provide guidance to agencies by establishing a “clear definition of what constitutes a repeatedly requested record” is one of the criticisms made about FOIA implementation in a report published by OMB Watch. McDermott, supra note 31. The report notes that it is not “up to the agency to decide if it is interested in disseminating the information; it depends solely on whether outsiders submit multiple requests for this information. . . . [I]nformation that is of sufficient interest to the public to spark two or more request must be placed in the agency’s reading room and, if created since November 1, 1996, must be made available electronically and in such a way that anyone with online access will enjoy the same informational access.” Id.

122.NARA requires posting if there have been three requests, 36 C.F.R. § 1250.12 (a)(4); the Air Force requires posting if there have been or are likely to be five or more requests, 32 C.F.R. § 806.12(b); and the IRS requires posting if there have been more than four requests, 26 C.F.R § 601.702 (b)(1)(D)(2).

123.H.R. REP. NO. 104-795, at 11 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3454 (“[T]he information technology currently being used by executive departments and agencies should be used in promoting greater efficiency in responding to FOIA requests. This objective includes using technology to let requestors obtain information in the form most useful to them. Existing technologies for searching electronic records can often review materials more quickly than is possible via a paper review.”).

124.Reporters’ Comm. for Freedom of the Press, FOI Letter Generator, http://www.rcfp.org/foi_letter/generate.php (last visited Oct. 31, 2005) (“This letter generator is designed to help you create a simple FOI letter. It asks you for all pertinent information, guides you through the options available, and even lists a number of federal agencies and their addresses.”). A similar form could be created by any public interest group seeking to have interested parties make multiple FOIA requests.

125.Melanie McFarland, TV 2004: Janet Jackson’s, uh, Expose Really Set Off The Sensors Of The Censors, SEATTLE POST, Dec. 30, 2004, at C1. The statistics exclude the Super Bowl incident involving Janet Jackson. McFarland reports on the alleged 159 complaints from the Parents Television Council about Married by America that led to a $1.2 million fine. An investigation revealed that, in fact, there were only ninety complaints about the show, made by twenty-three individuals (with twenty of those copies of a letter written by a single person). The Parents Television Council responded that its members sent in 4073 complaints about the show.

126. Administrative appeal is normally a prerequisite to suit. Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 57-58 (D.C. Cir. 1987) (“It goes without saying that exhaustion of remedies is required in FOIA cases.”); see also U.S. DEP’T OF JUSTICE, FREEDOM OF INFORMATION ACT REFERENCE GUIDE (Apr. 2005), http://www.usdoj.gov/04foia/referenceguidemay99.htm#appeals.

127. 5 U.S.C. § 552(a)(2)(D) (2000). One commentator has suggested that FOIA may require agencies to take the initiative and post documents that they know will be of wide public interest in electronic readings rooms without waiting for requests. Michael Tankersley, Introducing Old Duties to New Technologies, FED. LAW., Sept. 1998, at 24, 27.

128. FOIA gives the district courts explicit statutory authority to review agency decisions to withhold records de novo. 5 U.S.C. § 552 (a)(4)(B) (2000). The requestor has the discretion to specify the format of the records being requested. 5 U.S.C. § 552 (a)(3)(B) (2000) (“In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.”).

129. 28 U.S.C. § 2201 (2000). An agency does not have discretion about posting frequently requested documents in an electronic reading room, so its discretion to determine the number of requests that trigger the obligation cannot be absolute. The legislative history establishes a mandate to post materials on the Internet to avoid multiple FOIA requests and the concomitant duplication of agency resources. See supra ¶ 36. This policy has been implemented in an OMB circular directing agencies, when providing information to the public, including under the Freedom of Information Act, to disseminate information in a way that “achieves the best balance between the goals of maximizing the usefulness of the information and minimizing the cost to the government and the public.” Office of Mgmt. & Budget, Circular No. A- 130, Management of Federal Information Resources § 8(a)(5)(d)(i) (Nov. 28, 2000), available athttp://www.usdoj.gov/04foia/referenceguidemay99.htm#appeals.

130. See McDermott, supra note 31 (finding that no agency reading room contains all of the statutorily mandated material. And “fewer than 30% of the sites examined contained FOIA-released repeatedly requested documents in addition to these other items). Elsewhere, McDermott pointed out that the requirement that agencies put up information that has been released on a FOIA request-and for which they anticipate more requests-is “way more honored in the breach than the observance. Agencies mostly put up trivia if they put up anything.” Posting of Patrice McDermott, Assistant Director, American Library Association, Office of Government Relations, to [email protected] (May 25, 2005, 10:19:35) (copy on file with author).

131. James T. O’Reilly, FOIA and Fighting Terror: The Elusive Nexus Between Public Access and Terrorist Attack, 64 LA. L. REV. 809, 821-22 (2004) (estimating that agencies have won summary judgment motions in about 90% of litigated cases, by offering agency affidavits on the nature of the documents being withheld). But see Office of Info. & Privacy, U.S. Dep’t of Justice, New FOIA Decisions October-December 2004, FOIA Post, Jan. 10, 2005, http://www.usdoj.gov/oip/foiapost/2005foiapost1.htm (of twenty-eight cases reported, only five appear to have been resolved by agency declaration as to the nature of the documents being withheld); Office of Info. & Privacy, U.S. Dep’t of Justice, New FOIA Decisions January-March 2005, FO IA Post, Mar. 31, 2005, http://www.usdoj.gov/oip/foiapost/2005foiapost9.htm (of fifty-nine cases reported, twenty-one appear to have been resolved by agency declaration as to the nature of the documents being withheld). This mini-survey of FOIA lawsuits does not confirm a 90% claim.

132. Athough only classified documents are explicitly exempt from FOIA disclosure pursuant to 5 U.S.C. § 552(b)(1) (2000) (exempting those documents which are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order”), several recent cases have shielded “pseudo-classified” documents labeled “sensitive, but unclassified” or “for your eyes only” under a number of theories. SeeEmerging Threats Hearings, supra note 6, at 8, available athttp://reform.house.gov/UploadedFiles/Hammitt%20Testimony.pdf (prepared statement of Harry Hammitt, Editor/Publisher , Access Reports) (citing Living Rivers, Inc. v. Bureau of Reclamation, No. 2:02-CV-644TC (D. Utah, Mar. 25, 2003) (accepting agency’s declaration that law enforcement maps of flood areas below the Hoover and Glen Canyon dams might aid terrorists in carrying out an attack); Coastal Delivery Corp. v. Customs Service, No. 02-3838 WMB (C.D. Cal., Mar. 14, 2003) (upholding use of exemption 2 protecting internal documents as basis for denying information regarding inspections of seaport operations because if terrorists knew how often inspections occurred, they could send their containers to vulnerable ports)).

139. Stipulation of Dismissal, supra note 97; see also, Letter of Vesper Mei, supra note 97 (“The FBI has acknowledged that these documents are releaseable in full, pursuant to the Freedom of Information Act.”).

The nine exemptions as currently drafted are those agency records: (1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual; (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, concerning wells. Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made.

Each agency has been left with the responsibility of promulgating regulations for “frequently requested” documents. Following are those agency regulations located by the author that address the FOIA requirement that “frequently requested” documents be made available in electronic reading rooms.

Agencies where the factors guiding discretion are listed in the regulation:

o Department of Agriculture:

(4) Copies of all records, regardless of form or format, which have been released pursuant to a FOIA request under 5 U.S.C. 552(a)(3), and which because of the nature of their subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records. Agencies shall decide on a case by case basis whether records fall into this category, based on the following factors: (i) Previous experience with similar records; (ii) The particular characteristics of the records involved, including their nature and the type of information contained in them; and (iii) The identity and number of requesters and whether there is widespread media, historical, academic, or commercial interest in the records. (Public Access To Certain Materials, 7 C.F.R. 1.4(a) (4) (2004)).

o Department of the Navy:

5 U.S.C. 552(a)(2)(D) records. Those (a)(2) records, which because of the nature of the subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records. These records are referred to as FOIA-processed (a)(2) records. DON activities shall decide on a case-by-case basis whether records fall into this category based on the following factors: previous experience of the DON activity with similar records; particular circumstances of the records involved, including their nature and the type of information contained in them; and/or the identity and number of requesters and whether there is widespread press, historic, or commercial interest in the records. (1) This provision is intended for situations where public access in a timely manner is important and it is not intended to apply where there may be a limited number of requests over a short period of time from a few requesters. DON activities may remove the records from this access medium when the appropriate officials determine that access is no longer necessary. (2) Should a requester submit a FOIA request for FOIA-processed (a)(2) records and insist that the request be processed under FOIA, DON activities shall process the FOIA request. However, DON activities have no obligation to process a FOIA request for (a)(2)(A), (B) and (C) records because these records are required to be made public and not FOIA-processed under paragraph (a)(3) of the FOIA. (emphasis added). (5 U.S.C. 552(a)(2) Materials, 32 C.F.R. § 701.14 (d) (2004)).

o Department of Defense:

5 U.S.C. 552(a)(2)(D) records. Those (a)(2) records, which because of the nature of the subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records. These records are referred to as FOIA-processed (a)(2) records. DoD activities shall decide on a case-by-case basis whether records fall into this category based on the following factors: previous experience of the DON activity with similar records; particular circumstances of the records involved, including their nature and the type of information contained in them; and/or the identity and number of requesters and whether there is widespread press, historic, or commercial interest in the records. (1) This provision is intended for situations where public access in a timely manner is important and it is not intended to apply where there may be a limited number of requests over a short period of time from a few requesters. DoD activities may remove the records from this access medium when the appropriate officials determine that access is no longer necessary. (2) Should a requester submit a FOIA request for FOIA-processed (a)(2) records and insist that the request be processed under FOIA, DoD activities shall process the FOIA request. However, DoD activities have no obligation to process a FOIA request for (a)(2)(A), (B) and (C) records because these records are required to be made public and not FOIA-processed under paragraph (a)(3) of the FOIA. (emphasis added). (5 U.S.C. 552(a)(2) Materials, 32 C.F.R. § 286.7(b)(4) (2004)).

o National Railroad Passenger Corporation (Amtrak):

The FOIA requires that copies of records, regardless of form or format, released pursuant to a FOIA request under 5 U.S.C. 552(a)(3) that have become or are likely to become the subject of subsequent requests for substantially the same records be made publicly available. Such records created by the Corporation after November 1, 1996 will be made available electronically while records created prior to this date will be made available for inspection and copying in Amtrak’s public reading room. (1) FOIA records Amtrak shall decide on a case-by-case basis whether records fall into the category of “frequently requested ” based on the following factors: (i) Previous experience with similar records; (ii) The nature and type of information contained in the records; (iii) The identity and number of requesters and whether there is widespread media or commercial interest in the records. (2) The provision in this paragraph is intended for situations where public access in a timely manner is important. It is not intended to apply where there may be a limited number of requests over a short period of time from a few requesters. Amtrak may remove the records from this category when it is determined that access is no longer necessary. (emphasis added). (Frequently Requested Information, 49 C.F.R. 701.4 (c) (2004)).

In addition to discretion, the following agency regulations lists the number of requeststhat trigger the requirement to post FOIA records to the Internet:

o National Archives and Records Administration:

Copies of records requested 3 or more times under FOIA and other records that have been or are likely to become the subject of subsequent FOIA requests for substantially the same records…(emphasis added). (What Types Of Records Are Available In NARA’s FOIA Reading Room?, 36 C.F.R. § 1250.12 (a)(4)(2004)).

o Department Of The Air Force:

(a) HQ AFCIC/ITC will make the traditional FOIA-processed (a)(2) materials (5 U.S.C. 552(a)(2)(A), (B), and (C)) available to the public. Each Air Force activity must make 5 U.S.C. 552(a)(2)(D) records (“FOIA-processed (a)(2)(D) records”–records which they determine will, or have become, the subject of frequent or subsequent requests) available to the public in a reading room in hard copy and electronically by posting it to their appropriate web site. There is no requirement to make all FOIA-released records available electronically. The FOIA manager, in coordination with the functional OPR, or the owner of the records, determines qualifying records, after coordination with any interested OCRs. As required by AFIs 33-129 and 35-205, OPRs request clearance of these records with the PAO before posting on the WWW. (b) Normally, if the FOIA office or OPR receives, or anticipates receiving, five or more requests for the same record in a quarter, they will consider it a frequently requested record (FOIA-processed (a)(2)(D) record) and make it publicly available in hard copy and electronically as outlined in § 806.12(a). OPRs may elect to make other records publicly available if they receive, or expect to receive, less than five requests a quarter. The purpose is to make records available in an ERR to potential future FOIA requesters instead of waiting to receive a FOIA request, and reduce the number of multiple FOIA requests for the same records requiring separate responses. In making these determinations, recognize there are some situations in which a certain type of record becomes the subject of simultaneous FOIA requests from all interested parties and then ceases to be of interest. Activities may typically receive a “flurry” of FOIA requests for contract records im mediately after a contract is awarded, but do not receive any subsequent requests for such bulky records after that point. In some cases, activities may decide that placing records in the ERR would not serve the statutory purpose of “diverting some potential FOIA requests for previously released records.” (emphasis added).(Record Availability, 32 C.F.R. § 806.12 (2004)). The actual number of requests (5) that normally triggers posting a document to the electronic reading room is listed in the regulation.

o Internal Revenue Service:

Copies of all records, regardless of form or format, which have been released to any person under 5 U.S.C. 552(a)(3) and which, because of the nature of their subject matter, the IRS determines have become or are likely to become the subject of subsequent requests for substantially the same records. The determination that records have become or may become the subject of subsequent requests shall be based on the following criteria: (1) The subject matter is clearly of interest to the public at large or to special interest groups from which more than one request is expected to be received; or (2) When more than four requests for substantially the same records have already been received. (emphasis added). (Publication, Public Inspection, And Specific Requests For Records, 26 C.F.R. 601.702 (b)(1)(D) (2004)).

Agencies where no factors guiding agency discretion are listed; the following agencies’ regulations all use a variation of this language:

the component that maintains them determines, because of their subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records.

Service (NSA/CSS) o Export-Import Bank Of The United States (Public Reference Facilities, 12 C.F.R. § 404.3 (2004)). It is not clear from this regulation that the agency intends to put the material on the Internet, as E-FOIA requires.

o United States Patent And Trademark Office (Public Reference Facilities,37 C.F.R. § 102.2 (c)(2) (2004)). It is not clear from this regulation that the agency intends to put the “frequently requested’ documents on the Internet.

o Federal Maritime Commission (Mandatory Public Records, 46 C.F.R 503.21(a)(4) (2004)). It is not clear from this regulation that the agency intends to put the “frequently requested’ documents on the Internet.

o United States Postal Service (Availability of Records, 39 C.F.R. 265.6(a)(4)(2004)).

o Corporation for National and Community Service (What Types Of Records Are Available For Disclosure To The Public?, 45 C.F.R. 2507.3(a)(1)(v) (2004)). It is not clear from this regulation that frequently requested materials will be published on the Internet.

o National Aeronautics and Space Administration (Types of Records To Be Made Available, 14 C.F.R. 1206.200(b)(1)(iv) (2004)).

o Overseas Private Investment Corporation (What Types Of Opic Records Are Publicly Available, And How Do I Obtain Access To Or Copies Of These Records?, 22 C.F.R. § 706.21 (a) (2) (2004)).

The agency does not mention frequently requested records specifically; sample language from these regulations is:

All records created by the agency on or after November 1, 1996, which the FOIA requires an agency to make regularly available for public inspection and copying, will be made available electronically through the agency’s worldwide Web site, or, upon request, through other electronic means. The agencies below follow this format:

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